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TODAY'S OPINIONSClick on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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We granted the Defendant's application for permission to appeal in order to address how the 2005 revisions to the Criminal Sentencing Reform Act of 1989 impact the method of imposing a sentence. The Defendant was convicted by a jury of vehicular homicide and driving on a suspended license. The trial court sentenced the Defendant to serve ten years for the homicide and eleven months
twenty-nine days for the driving offense, to be served concurrently. The trial court suspended both sentences. The State appealed, and the Court of Criminal Appeals reversed the trial court's judgment and modified the Defendant's homicide sentence to fifteen years to serve. We hold that the trial court committed no reversible error in sentencing the Defendant to ten years on the homicide
offense, but did commit reversible error in placing the Defendant on probation. We reinstate the Defendant's ten-year sentence and order that it be served in the Department of Correction.

The trial court granted Plaintiff/Taxpayer's motion to compel discovery of documents that Defendant Department of Revenue asserted were not subject to disclosure under the Taxpayer Confidentiality Act. We granted permission for interlocutory appeal, and reverse.

This is a termination of parental rights case. Mother/Appellant appeals the Order of the Gibson
County Juvenile Court terminating her parental rights to her two minor children. Specifically, Appellant asserts that the grounds of abandonment, persistence of conditions and failure to substantially comply with the permanency plans are not supported by clear and convincing evidence
in the record, and that termination of her parental rights is not in the best interests of the children. Because we find clear and convincing evidence in the record to support the grounds of failure to substantially comply with the permanency plans, and persistence of conditions, and clear and convincing evidence that termination is in the best interests of the children, we affirm.

Mother appeals trial court granting Father primary residential custody without making the findings about alleged abuse required by Tenn. Code Ann. section 36-6-106(a)(8). Based upon the circumstances of this case, including the fact that this was a divorce in which the court was required to adopt a permanent parenting plan, we conclude that the trial court was not required to make those findings. Applying the factors relevant to a determination of the residential schedule of minor children, we affirm the trial court's judgment.

This appeal involves a jury's award of punitive damages. The construction company entered into a contract with the State of Tennessee to widen a portion of a highway. The homeowners entered into a contract with the construction company allowing the construction company to place excess
materials generated from the highway project on the homeowners' property. In exchange, the homeowners would receive compensation based on the cubic fill area, and the company would fill and grade that portion of the homeowners' property. The project required that the construction company conduct extensive blasting near the homeowners' house and vehicles. One of the homeowners became concerned when he witnessed the construction company placing various garbage items and tires on his property near the fill area. After three years, the construction company finished the project. The homeowners brought suit, alleging that the company failed to pay the amount due under the contract and caused damage to their house due to the blasting. The complaint
also alleged that the company buried certain items, including tires, on the property which constituted an environmental tort. The homeowners' amended complaint stated a cause of action in nuisance and also sought an award of punitive damages in the amount of $1 million dollars. The jury returned a verdict in favor of the homeowners for the nuisance claim in the amount of $3,305.00 and found that punitive damages should be imposed on the construction company. The jury found in favor of the construction company for the environmental tort claim. After the second phase of the trial, the
jury returned an award of $2 million in punitive damages. The trial court remitted the award to $1 million, the amount of the homeowners' ad damnum. The construction company appeals, and we reverse and remand in part and affirm in part.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kenneth Irvine, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Thomas E. Barger, pled guilty to two counts of robbery. He received consecutive five year sentences and was placed on probation. The petitioner argued that as a result of the ineffective assistance of counsel, he entered into a plea agreement for which he received an illegal
sentence. After a hearing, the post-conviction court dismissed the petitioner's petition but ordered that a clerical error in the petitioner's judgment be corrected. The petitioner appeals the judgment of the post-conviction court. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.

Defendant, Terry Lynn Byington, appeals the trial court's order declaring him to be a Motor Vehicle Habitual Offender (MVHO). Defendant argues on appeal that the trial court erred in allowing the petition to continue despite a delay in filing and whether this delay violated his constitutional right
to due process under the Fifth Amendment to the federal constitution. After a thorough review of the record, we affirm the judgment of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Takisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

This case involves an appeal by the state from an order of the trial court revoking the defendant's probation and placing him in a community corrections program rather than ordering confinement. Because we conclude that the trial court was without statutory authority to place the defendant in a community corrections program after revoking his probation, we reverse the court's judgment and
order that the defendant be placed in confinement for the balance of his original two-year sentence.

Robert E. Cooper, Jr., Attorney General and Reporter; and Jennifer L. Bledsoe, Assistant Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Petitioner, Timothy Earl Waters, appeals the Lauderdale County Circuit Court's denial of his petition for the writ of habeas corpus. In 1989, Waters was convicted by a Shelby County jury of first degree murder and assault with intent to commit first degree murder. The State has filed a motion requesting that this court affirm the lower court's ruling pursuant to Rule 20, Rules of the Court of Criminal Appeals. Following review, we conclude that the petition fails to allege any ground which would render the challenged judgments of conviction void. Accordingly, dismissal of the petition is affirmed.

Former Lt. Gov. John Wilder, a Mason Democrat and sponsor of the bill that would revive the Judicial Selection Commission, asked today to put it on hold because he didn't feel he had the votes to move it out.
He's now considering whether to try to get the 17 votes needed to call the proposal up on the Senate floor Tuesday and then put it to a vote.

Columnist Tom Humphrey takes a critical look at the Government Operations committees, which are charged with oversight of all state government boards, agencies and departments, and periodically recommending whether they should continue in existence. This session there are 54 entities that are scheduled to go into "wind down" and cease to exist on July 1, 2009. The agencies include the Department of Revenue, the Department of Correction and the Judicial Selection Commission. Humphrey writes that "the inept functioning of the two legislative committees" are not helping matters.

An apparent deal has been struck in the state legislature that looks like it will save 2,011 jobs from the chopping block, at least until Jan. 1, NashvillePost.com reports.
This proposal will have to be approved by legislative committees and the full legislature, but Capitol Hill insiders told the publication "that they are confident the deal will stick and the plan will be approved."

The Judicial Selection Commission is starting process to fill the vacancy on the Supreme Court that will be created by the retirement of Chief Justice William M. Barker. Applicants must reside in either the eastern or western grand divisions. Applications are due June 20.

Scott Meltzer has been selected as a recipient of Campus Compact's 2008 Frank Newman Leadership Award for dedication to service and civic engagement. A sophomore at Centre College, he has worked within his home state of Tennessee to set up Teen Courts and as a member of the Tennessee Youth Court Program Advisory Board for the Tennessee Legal Community Foundation, a division of the Tennessee Bar Association. He also contributes to his local community by volunteering in an after-school program for elementary and middle school children with mental health issues, and by serving as a Big Brother.

The Supreme Court today upheld a law aimed at preventing child pornography, ruling a provision dealing with "pandering" illicit material does not violate constitutional protections on free speech. The "Protect" Act was Congress' latest attempt to control graphic images on the Internet. Previous efforts were struck down by the high court on First Amendment issues.

The Second Annual Corporate Counsel Pro Bono Initiative Gala will be Thursday at the Loew's Vanderbilt Hotel in Nashville. The event will celebrate the pro bono partnership among Tennessee's corporate legal departments, law firms and access to justice organizations. Individual tickets are still available. For more information or to purchase a ticket, contact Becky Rhodes by email at brhodes@tnbar.org or by phone at (800) 899-7421 or (615) 383-7421.

The annual meeting of the Tennessee
Lawyers' Association for Women (TLAW) will be
June 13 at 7 a.m. at the Gatlinburg Convention Center. The primary business to be addressed will
be the election of officers from the following slate proposed by the nominating committee (nominations will also be accepted from the floor):
President-Elect:
Amy Hollars;
Treasurer:
Linda Knight;
Recording Secretary:
Kristen Amonette;
Corresponding Secretary (Newsletter Editor): Tiffany Johnson;
West Tennessee Director at Large: Markeisha Savage;
Middle Tennessee Director at Large: Maria Salas; and
East Tennessee Director at Large: Debra House (to complete the second year of Sharon Lee's term). President-Elect Barbara Zoccola will automatically become
the new president. Marcia McMurray will be the immediate
past president and serve on the Board.

The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.